Rao should never have been charged: screening out racial profiling

Santina Rao finally had her charges of assault of a peace officer, resisting arrest and causing a disturbance dropped on July 7, 2020.  Finally.  This happened six months after she was racially profiled by Walmart security, falsely accused of shoplifting, then violently arrested by Halifax Regional Police after they interrogated her for her identification and other information, all in front of her two young children. 

As the Crown prosecutor Jane McDonald-Mills put it on July 7 in court, the Crown had, “concerns about a realistic prospect of conviction at this time.” She added that the Crown did not believe it was in the public interest to proceed with the charges. The court proceedings could have easily been avoided at the outset. The charges should never have been laid because there was really never a case.

Charges are laid once the Information is sworn before a justice of the peace. The information is the charge forming document and contains a description of the charges. In Nova Scotia, the police lay charges, and when they do, court proceedings begin. When police lay charges that eventually fail the test for prosecution, they cause harm in the form of stigma of the person accused, and conditions that place limitations on the person’s freedoms for charges that were unjustified from the outset. This is what happened to Rao.

An alternative is pre-charge screening by the Crown, where the Crown decides whether to lay charges only if there is a case for prosecution. There are already three jurisdictions in Canada where the Crown, not the police, decide whether charges should be laid: New Brunswick, British Columbia and Quebec. Pre-charge screening by the Crown, if it functioned properly, should take cases like Rao’s off the table before court proceedings begin.

The delays in her unjustified charges being dropped and had huge and negative impacts on her. As she wrote in the Halifax Examiner:

For the past 6.5 months, every day I’ve awakened feeling like I was failing, while the charges hung over my head. Even though countless people reached out with their support, I felt alone and alienated.

As I look back at the entire situation, I will continue to be alienated, because I was, and always will be to others, “that Black girl who got assaulted in WalMart,” and people will remember me for the horrible trauma my babies and I suffered through.

Yes, I am happy the charges have been dropped. But that means there’s something new I need to fight for: the justice from the fact that a WalMart employee took it upon themselves to racially profile me, call HRP, and tell them whatever, so they’d send as many police officers as they did just for me, unarmed, and my two babies.

I suffered a broken wrist, concussion, and lacerations to my body.

The charges are dropped, but there is no justice for me. I am still currently banned from all WalMart properties, even though there was never any theft in the first place.

Pre-charge screening by the Crown is an improvement. But more should be demanded than just this bare minimum. An additional filter should be put in place. Cases where police street-checked or otherwise unlawfully stopped a Black or other racialized person, and charges arose out of reactions to the illegal treatment, should be screened out.

As the Wortly Report on police street checks in Nova Scotia revealed, Black people in the province have been street-checked at 5-times the rate of their representation in the population. These illegal stops, if they result in charges related to opposing police treatment, such as Rao’s case, should never be considered in the public interest to prosecute, as that would simply validate racial profiling. The public interest test for prosecution includes whether prosecution of the case would cause loss of public confidence in the administration of justice. The public should lose confidence if illegal and racist conduct by the police is validated.

The problem of Black and other racialized people being put through the courts without legal justification is likely huge. How many cases are there, which did not get the attention of Rao’s, where police street checks resulted in charges that were eventually withdrawn much later? Or even worse, where the stress of having charges hanging overhead, and no trust that the justice system would work in their favour, resulted in guilty pleas just to ease the burden?

Pre-charge screening does not automatically remove bias and racism from the equation. Evidence has shown (1, 2, 3) that Black and Indigenous people regularly received harsher sentences and denial of release on bail than white counterparts in similar circumstances. This is the result of systemic biases in prosecution and at the judicial level. These larger problems must still be addressed. But pre-charge screening is a small measure to take away some power from police, on the way to much larger, systemic changes.

Disarming the police to save lives

Tens of thousands of people have hit the streets across the county in response to the horrific choking death of George Floyd by the knee of Minnesota police officer Derek Chauvin, Toronto police involvement in the death of Black-Indigenous woman Regis Korchinski and so many other racialized people who have been the victim of disproportionate killing by police.  There is a strong push for systemic change and calls to defund and disarm the police and to give the money to communities, including in Halifax

Police are often assumed to be a fundamental part of a functioning society.   But they not.  They are nothing more than a legal creation with a lot of funding to carry out their operations, just like corporations.  They have a set of powers, which makes them police: the authority to inflict serious bodily harm or death, carry lethal weapons, detain, arrest and search.  There are layers to these powers to unpeel.  I am only going to focus on one aspect: their power and discretion to inflict serious bodily harm and lethal force, which is the legal source of their disproportionate brutality and killing of Black, Indigenous and other racialized people.

Anti-Black and Anti-Indigenous racism is a deeply rooted, systemic crisis in Canada, in which police killings are the most severe consequence.  Police have demonstrated a gross abuse of their power, in targeting particularly Black and Indigenous people, and with deadly violence.  In 2018, the Ontario Human Rights Commission reported that a Black person is 20 times more likely to be killed by police than a white person.  In April of this year, 3 Indigenous people were killed by Winnipeg police in just 10 days.  Another Indigenous woman, Chantel Moore, was killed by New Brunswick police on June 4 during a wellness check on her.  To state the obvious, the matter does not just rise to an injustice when police racism results in death.  In Nova Scotia, Santina Rao was racially profiled by Walmart security in early 2020.  The incident resulted in her being surrounded by 6 armed police officers in addition to security guards who accused her of shoplifting, then she suffered injuries as they violently arrested her.  The prosecution refused to drop the charges despite many expressing concerns of their unlawfulness.

The police have legal authority to use violence, including deadly force, in specific circumstances.  This is what many refer to as the licence to kill.  Under section 25(3) of the Criminal Code of Canada (Code), a police officer is justified in using “force that is intended or is likely to cause death or grievous bodily harm” to someone they are arresting if the officer:

 … believes on reasonable grounds that it is necessary for the self-preservation of (the officer) or the preservation of any one under the (the officer’s) protection from death or grievous bodily harm. 

Under section 25(4) of the Code, a police officer is justified in using force that is intended or is likely to cause death or grievous bodily harm of a person to be arrested if (paraphrasing):

  • The officer has lawful authority to make an arrest for any criminal offence that is ongoing, just transpired or for any indictable offence (more serious) after the fact;
  • If the person is trying to evade arrest;
  • Officers have reasonable grounds to believe that the force is necessary to protect themselves or the public from present or future death or serious bodily harm;
  • The evasion of arrest cannot be prevented by reasonable means in a less violent manner.

Police have an enormous amount of discretion under section 25 of the Code, which works in conjunction with validation from courts.  In Nasogaluak, the Supreme Court of Canada majority said:

[35] Police actions should not be judged against a standard of perfection.  It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies.  Their actions should be judged in light of these exigent circumstances.  As Anderson J.A. explained in R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

This is the key: when police decide to use force to cause grievous bodily harm or death, they will almost always be found justified.  Add a racial bias to their decisions  — more on that further below — and the result is a disproportionate killing of Black, Indigenous and racialized people. 

In addition to section 25 of the Code, police can also use the law of self-defence under section 34 of the Code, which requires that the defence is proportionate to an attack or perceived attack.  It is largely redundant of the power under section 25.  Technically, anyone has this defence available. Police can call upon this defence in cases where a person is perceived by police — so they say — to be attacking them.  Interestingly, section 34 of the Code treats self-defence by police in the same manner as for a civilian, despite their training, lethal tools, the presence of other officers assisting them, if the would-be assailant does not have a firearm and that police are initiating the interactions.

The power of police to carry and use firearms under the Firearms Act and under section 117 of the Code adds a further dimension to the arsenal of legally-authorized, discretionary violence.  Disarming does not just mean taking away guns or other weapons, but taking away police power to inflict death, including by lethal chokes of deadly beatings.  The guns, however, are the major tool use used in the infliction of deadly force.  Police have the power to carry firearms under the Firearms Act and under section 117 of the Code.

Discretion should also been seen as power.  Police are provided with enormous power through the Code and Firearms Act, and through the lens of racial bias, this power has led to a growing litany deadly consequences for Black, Indigenous and other racialized people.

Due to the enormous discretion and latitude police are given to inflict death and serious bodily harm in the course of their duties, they are very rarely even charged for killing people in the course of their duties.  As a result, there is very little recent case law on the criminal law power of police to kill.  Even the case of Andrew Loku, a Black Man in Toronto living with mental illness, wielding only a hammer, and shot dead by police in July 2015, did not result in charges.  The case of Sammy Yatim, a young, Brown man killed on a streetcar by Toronto police officer Jason Forcillo on July 27, 2013, is one of the rare cases where an officer was charged and convicted — though not for actually killing him.  It provides a good demonstration of the gross power held by police through their licence to kill and carry firearms.  Yatim had a switchblade and was suffering from a mental distress.  When Forcillo and other officers arrived, the streetcar was empty, as everyone had cleared away from the vehicle.  Police did not try and take Yatim down through non-lethal means.  Forcillo shot him 9 times, and Yatim was also tazered, but his gunshot wounds were fatal before the final shots or shocks.  The Ontario Court of Appeal summarized the findings at trial, which they upheld:

[4]         The appellant testified and acknowledged that he shot and killed Mr. Yatim. He claimed that the shooting was justified under either s. 25 (lawful use of force) or s. 34 (self-defence) of the Criminal Code.

(…)

[7]         The trial was hard fought. The jury returned verdicts of not guilty of second degree murder on count one, and guilty of attempted murder on count two. The verdicts indicate that the Crown had failed to prove beyond a reasonable doubt that the first volley of shots was not justified under either s. 25 or s. 34, but had proved beyond a reasonable doubt that neither defence applied in respect of the second volley of shots.

 [8]         The combination of verdicts returned by the jury presents an unusual, if not unique, result. The appellant stands acquitted of murdering Mr. Yatim and he stands convicted of attempting to murder Mr. Yatim, some 5.5 seconds later. In effect, the appellant has been convicted of attempting to murder the very same person he was found to have justifiably fatally shot just 5.5 seconds earlier.

This reveals how easily police discretion to use deadly force can be abused.  Forcillo was found not guilty during the first volley of shots that actually killed Yatim because his use of deadly force was considered justified under sections 25 and 34 of the Code.  In other words, his decision was considered reasonable.  There are many reasonable ways that the situation could have been de-escalated, none involving drawing a firearm as an introduction.  But Forcillo did exactly that,  immediately drawing his gun, escalating the situation, firing a barrage of shots, and the ordeal ended with Yatim dead. 

In addition to defunding police — to systematically remove police from the provision of community health and safety — disarming them removes their capacity for racially targeted brutality and killing.   This would involve removing their powers to inflict serous bodily harm or death based on their so-called reasonable perception of threats under section 25 of the Code, as well as for changes to section 34 of the Code that excludes police from the same criteria of self-defence as an ordinary person.  Police powers to show up with guns in response to any call — with mental health or wellness checks being particularly egregious — should be stripped away.  Reforms such as body cameras would be mainly useful after the fact, but they do nothing to alter racist perceptions, and have been found far less effective than many believe. 

When police are provided the discretion to use deadly force, we see the systemic biases in society play out in deadly ways.  Due to a history of systemic racism and stereotyping, Black, Indigenous and other racialized people are falsely perceived as more threatening and violent.  It is well documented that racially-biased perceptions of threats are connected to police killings.   Police will be able to keep killing Black, Indigenous and other racialized people with gross disproportion while the false perception of heightened threat remains, as long at they maintain their legal power, armaments and funding to kill.   Whatever has been done or tried for training to confront racial biases has not worked.

Defund and  disarm police.  Fund communities.

Evictions during pandemic should be seen as forced and unlawful

The impending end to the provincial moratorium on residential evictions of those with incomes affected by COVID-19 is coming on June 30, placing many tenants on the edge.  More broadly, all residential evictions during the pandemic are problematic as everyone needs a place to “stay the blazes home”.  Any evictions at this time should be considered forced evictions, and violations of the right to housing under international law pursuant to the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR) and under domestic law under the Canadian Charter of Rights and Freedoms (Charter) and contrary to the right to housing recognized in the National Housing Strategy Act. 

In Nova Scotia, unaffordability of housing is a major barrier for the well-being of predominantly working class people.  In Halifax, the situation is terrible, with more than 21% of households in Halifax are paying a staggering 50% of their incomes on rent and utilities, while over 43% spend over 30% on rent and utilities.  Before the pandemic, the vacancy rates in Nova Scotia were approximately 1.4% and an even worse 1% in Halifax, with affordable housing at a miserable 0.5%.  With gutted incomes due to the economic impacts of COVID-19, the proportion of incomes going to rent has obviously increased substantially, with exact numbers unknown at present.

Why any evictions right now should be seen as forced and illegal

International and domestic law should work to make any evictions during the pandemic unlawful due to tenants having committed no fault in being unable to afford rent and also due to the health risk of being homeless during the pandemic and having no legal protection against such evictions.

For decades, Canada has been party to international law that has required it to progressively improve provision of affordable and adequate housing. There is no reasonable excuse for a rich country such as Canada to have an affordable housing crisis.  Under ICESCR, all state parties including Canada:

undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant.

Article 11 of the ICESCR contains the right to housing (my emphasis):

  1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

Article 17 of the ICCPR states that, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home.”

Both these above articles work to prohibit forced evictions, which are recognized as a violation of the right to housing.  In its General Comment No. 4, the UN Committee on Social, Economic and Cultural Rights, the Committee interpreted the right to housing to include security of tenure, which includes the prohibition against forced evictions:

…all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.

In General Comment No. 7, which directly addresses forced evictions, the Committee defines forced evictions as, “permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”

At paragraph 4 they state:

… the practice of forced evictions may also result in violations of civil and political rights, such as the right to life, the right to security of the person, the right to non interference with privacy, family and home and the right to the peaceful enjoyment of possessions.

Paragraph 8 interprets section 17.1 of the ICCPR in light of the right to not be forcibly evicted:

… article 17.1 of the International Covenant on Civil and Political Rights which complements the right not to be forcefully evicted without adequate protection. That provision recognizes, inter alia, the right to be protected against “arbitrary or unlawful interference” with one’s home.

Paragraph 16 states, “Evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights.”

Canada has already been scrutinized for its lack of compliance with the right to housing.  In 2016, the Committee issued a rather scathing report to Canada, where it stated (my emphasis):

  1. The Committee urges the State party to develop and effectively implement a human-rights based national strategy on housing and ensure that all provincial and territorial housing strategies are aligned with the national strategy. In light of its general comments nos. 4 (1991) on the right to adequate housing, and 7 (1997) on forced evictions, the Committee recommends that the State party:

 (a) Progressively increase federal and provincial resources allocated to housing, and reinforce the housing subsidy within the social assistance benefit so as to be commensurate to living costs;

(b) Take effective measures to substantially increase the availability of social and affordable housing units;

(c) Regulate rental arrangements with a view to ensuring that tenants enjoy the right to affordable and decent housing and are not vulnerable to forced evictions and homelessness;

(d) Ensure that its legislation on forced evictions is compatible with international norms, particularly with respect to its obligation to ensure that no persons find themselves homeless or victims of other human rights violations due to evictions, and that compensation or alternative accommodation is provided to victims.

With the advent of Canada’s National Housing Strategy Act (NHSA), the right to housing was finally adopted into domestic law in a formal sense.  Following from international law and the adoption by Canada of the NHSA, the right to housing, including the right against forced evictions, should be considered part of a person’s section 7 Charter rights to, “life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Being evicted must be seen as a deprivation of security of the person, which the Supreme Court of Canada has held to be any government action that deprives a person of psychological integrity and puts their well-being at stake.  Section 7 of the Charter requires that there can be no deprivation of security of the person that is in discord with the principles of fundamental justice.  Those principles include that acts or omissions of government are not arbitrary or unreasonable.  The McNeil government has failed to provide tenants with adequate protection or redress through its omissions.

Once the suspension of COVID-19 related evictions ends on June 30, 2020, countless tenants will face eviction proceedings if they are unable to meet their rental debts.  Any such eviction proceedings will be forced evictions if the tenants do not wish to leave.  As noted above, international law requires that no one be rendered homeless due to evictions, and vulnerable to the violation of other human rights, which could include forced exposure to higher risk of infection of COVID-19.  As well, it requires that there is legal protection against forced eviction.  The Charter should be interpreted to do the same.  Countless tenants who are struggling to cover costs of living due to COVID-19 economic impacts are, or will be, short on rent though no fault of their own.  Businesses and other workplaces were forced to close or trim down due to orders under the Health Protection Act and Emergency Management Act.  Federal and provincial government benefits for people who have lost income have not gone far enough to cover the costs of rents that have failed to go down in conjunction with the economic pinch.  If someone is evicted for not being able to pay unaffordable rent, that has not adjusted whatsoever to the economic reality, this is entirely unreasonable.  Furthermore, regardless of whether the reason for the eviction is a COVID-19-related shortfall of rent, any homelessness caused during the pandemic will expose those cast out to higher risks of contracting or being vectors for spreading the virus, as they will have nowhere to self-isolate.  Housing was already unaffordable before the pandemic.  Now it is a major crisis that should be dealt with urgently.

The Nova Scotia government needs to halt all evictions during the pandemic.  No one should be made homeless to their own peril.  Rent must be indexed to current income levels and be calibrated to the overall costs of living, so as not to leave tenants with their bank accounts bled dry each month to advance profits of landlords.  Unaffordable rental debts accumulated during the pandemic must be forgiven and rental payments going forward must be affordable.  Landlords should be compelled to accept reasonable payment plans that will not stress tenants by consuming would-be savings that are essential to survive the hard economic times to come for working class people.  Landlords should also have to negotiate with tenant organizations that are acting as the collective voice of organized tenants, just as employers must negotiate in good faith with workers through labour unions.

COVID-19 Provincial and municipal park ban in Nova Scotia unjustifiably treads on liberty rights

Public parks are essential public spaces.  In ordinary times, they are places where people gather, play with kids, walk and play with dogs, play games with friends and strangers in the community, run, bike and express themselves.  They are crucial spaces for community cohesion.  But these are not ordinary times.  People cannot gather in groups of more than five, and cannot come closer than two metres to each other.  Some people are not allowed out at all due to self-isolation or quarantine orders.

Controlling COVID-19 requires strong measures to ensure public health and to flatten the curve on the spread of the virus.  No reasonable person is denying that. In Nova Scotia, any orders made by Chief Medical Officer Dr. Robert Strang, arising out of medical evidence, to limit the activities of individuals, businesses and other entities to prevent the virus from spreading should be followed and should be justifiable under the Canadian Charter of Rights and Freedoms (Charter).

BUT

We all need to keep a watchful eye on the over-reach of state power during times of emergency.  The public health emergency does not give the province justification to enact laws or make orders that go beyond what is legitimately required to control the spread of COVID-19, resulting in harsh impacts.  The order under the Health Protection Act (HPA), by Dr. Strang is what is legitimately required and any complementary orders by the province have to be consistent with it. Oversteps by the state lead to violations of our civil liberties.  

On March 22nd, the province made just such an overstep, issuing an order under the Emergency Management Act to prevent people from being in provincial and municipal parks, and examples of enforcement have shown the impacts have been harsh.  On the province’s webpage informing the public about government action on COVID-19, they state, “Provincial parks, beaches, and tourist attractions are closed. Provincial trails will remain open for exercise. Gathering limits and social distancing guidelines must be followed.”  On March 30, the province issued a Minister’s Directive under the Police Act, which stated, “police shall escalate their efforts from public education to enforcement, in accordance with officer discretion.” Specifically regarding the ban on public parks, the Order stated:

Police focus should be on the issuance of SOTs (summary offence tickets) for failing to comply with the Minister’s direction issued under Section 14 of the Emergency Management Act prohibiting all travel into provincial and municipal parks and beaches while closed during a state of emergency.

The ban on being in provincial or municipal parks in Nova Scotia goes beyond the requirements of Dr. Strang’s order, and is not otherwise justified by the federal Quarantine Act, any federal Order in Council or other emergency federal law or regulation put in place due to COVID-19.  The park ban is an unjustifiable infringement of liberty rights under section 7 of the Charter because it is overly broad. Enforcement powers include the power to arrest and fine a person $697.50, as well as tow vehicles found parked at provincial or municipal parks.

In order to understand the disconnect between public health measures to control the spread of COVID-19 and the authority to arrest anyone, even if alone in a park, it is important to start with the order by Dr. Robert Strang.

Dr. Strang’s order is dated March 26, 2020, and amended on April 2, 2020.  It was made under section 32 of the HPA, which provides the authority to the Chief Medical Officer (CMO) to make orders to regulate conduct of people and entities if the CMO has, “reasonable and probable grounds that … the requirements specified in the order are necessary in order to decrease or eliminate the risk to the public health presented by the communicable disease.”  The order requires self-isolation or quarantine for 14 days for people who enter Nova Scotia, have been in contact with someone who has been diagnosed with COVID-19, are diagnosed with COVID-19 or have been tested for COVID-19.  All persons who travelled outside Canada must do the same (which also arises from an order under the federal Quarantine Act).  All persons in Nova Scotia, with exceptions for hospital workers and other specific workers, are required to stay two metres apart from others and to keep gatherings to less than 5 people.  Schools, day care facilities and many businesses were also ordered closed in order to avoid the risks of spreading COVID-19.  There was nothing about parks in Dr. Strang’s order.

Based on Dr. Strang’s order, if social distancing is maintained by at least 2 metres; any group is less than 5 people; and, there is no one in a provincial or municipal park that is under a quarantine or self-isolation order, then there is no reasonable and probable risk of spreading COVD-19 by simply being in a provincial or municipal park. That is a logical deduction.  But the law requires more than just a logical deduction.  It is necessary to examine what courts have said about liberty or other applicable rights as they relate to entering or being in public parks.

What does the law say about the right to be in a park?

The right to be in a public park is protected by the right of all persons to liberty.  Liberty is a fundamental right, protected under section 7 of the Charter, which articulates the right to, “life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”  State action cannot be overly broad, so as to catch people who are actually following Dr. Strang’s order or other government orders made to reduce the risk of spreading COVID-19.

The Supreme Court of Canada explained the analysis for an overbroad law in R v Bedford:

[112]   Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part.  At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. …

[113]   Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others.  Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose.  For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter.

Section 1 of the Charter only allows the state to impose reasonable limits on any rights and freedoms.  The limit must only be what is minimally required for the state action, as held by the Supreme Court of Canada: R v Oakes.

The right to liberty has been an important issue for access to public parks. The law protects even the rights of people convicted of serious offences to be in public parks, allowing only reasonable limits.  In R v Heywood, the Supreme Court of Canada (SCC) ruled on whether a total ban on entering any park at any time violated the liberty of a man convicted of sexual assault of children.  They ruled that the all-out ban was overly broad because it prevented the person from going into any park, regardless of whether there were children present, therefore went beyond control of the offending behaviour (See Heywood pp. 794 – 795 in PDF).  Regarding access to public parks, the SCC majority commented, “Parks are places which are specifically designed to foster relaxation, indolent contemplation and strolling; in fact it may be assumed that “hanging around” and “idling” is encouraged in parks.” (See Heywood, p. 795).

So, even someone convicted of sexual assault of children was allowed in some public parks as long as they were not areas that were frequented by children.  Should Nova Scotians without such convictions, who venture alone into Nova Scotia parks and are following all other conditions of Dr. Strang’s order, be more restricted than those convicted of sexually assaulting children?

The right to be in public parks came up again at the British Columbia Court of Appeal (BCCA) in a case involving homeless people tenting overnight in parks.  In Victoria (City) v Adams, the BCCA ruled that a city bylaw that prevented homeless people from sleeping in tents in a public park overnight was overly broad, therefore unjustifiably breaching the liberty of homeless people.  They described the liberty issue as follows:

[104] … The trial judge summarized her conclusion on the deprivation of liberty (at para. 148):

The majority of homeless people in Victoria have no choice but to sleep on public property. There is no other place for them to go. I agree with the submission of the [respondents] that creating shelter to protect oneself from the elements is a matter critical to an individual’s dignity and independence. The state’s intrusion in this process interferes with the individuals’ choice to protect themselves and is a deprivation of liberty within the scope of s. 7.

They concluded why the bylaw was overly broad:

[116] … The prohibition on shelter contained in the Bylaws is overbroad because it is in effect at all times, in all public places in the City. There are a number of less restrictive alternatives that would further the City’s concerns regarding the preservation of urban parks. The City could require the overhead protection to be taken down every morning, as well as prohibit sleeping in sensitive park regions.

Victoria (City) is an important ruling on the range of liberty in public parks.  It emphasizes the importance of protecting the right to access and use of these public spaces for activities that are fundamental to our well-being.  In this case, it was the right of homeless people with nowhere else to stay to cover themselves with overhead protection while sleeping overnight.  Perhaps even more important is the larger meaning of such a ruling.  That is, there can only be minimal restrictions on liberty in public parks, and these restrictions must be targeted only to serve other, legitimate public interest functions.

In another BC case, City of Surrey v Lewis, the provincial court of BC decided that a person did not have the liberty to simply be in a park overnight, after the park was closed, because this was a reasonable limit, to avoid the need for the city to have to service the park overnight.  This limit was not considered overly broad.  The court was still required to consider the issue because the right to liberty was raised, and it applies to public parks.

The noted cases provide guidance on how liberty rights apply to public parks, as well as how to measure whether a law is overly broad, which is addressed in Bedford. The SCC cases of Bedford and Heywood are binding on all of Canada.  Overall, the cases noted above make a few points clear.

  • People do have the right to enjoy public parks, as they are places where people engage in activities that support their well-being;

  • Governments cannot limit access to parks unless the limit is justified under a precise, lawful authority that is not overbroad;

  • It is okay for governments to limit the use of parks to only those times that they can be serviced, which excludes overnight use for non-campground parks

It should also be remembered that in Bedford, enforcement practicality is a possible basis for justifying an otherwise overly broad law.  Enforcement practicality was never actually analyzed in Bedford, but it can easily be surmised as what is reasonably necessary for enforcement to even be functional.

Why the ban on entering parks in NS likely violates the Charter  

Recounting the analysis of overbreadth in Bedford quoted above:

… the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose.  For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual.

Even though the ban arose out of a Minister’s Directive rather than Dr, Strang’s order under the HPA, the whole point of the Directive is to support Dr. Strang’s order.  Again, Dr. Strang’s order is based on, “reasonable and probable grounds that … the requirements specified in the order are necessary in order to decrease or eliminate the risk to the public health presented by the communicable disease.”  Dr. Strang did not see it as necessary to add a ban on entry to public parks to his order.   Under the current NS ban on entering provincial and municipal parks, people are being denied entry to all areas except certain approved walking trails in provincial parks or trails through other parks that are used for crossing them on the way to work or other destinations. No playing. No staying. The ban applies during the day. It applies to individuals and groups of 5 or less people, even if they are physically distancing by at least 6 feet. As an example of how the park ban has gone well beyond the limitations set by Dr. Strang or any other measures rationally connected to limiting the spread of COVID-19, on March 29th, a woman was arrested at Point Pleasant Park in Halifax for a violation of the park ban. She was alone with her dog.  Her car was also seized.  There are likely many more examples. On April 6, it was reported that 39 tickets had been issued on the weekend of Saturday, April 4th and that most were due to being in prohibited areas under the Emergency Act, which likely refers to being in public parks.   Police tape has also been placed outside of a number of public parks, with tape going up in areas of the Halifax Commons as of April 6th.

Banning entry to provincial and municipal parks is not necessary as a means of enforcement practicality.  There is nothing stopping police from simply enforcing the same limitations set out by Dr. Strang that apply to other non-residential locations to provincial and municipal parks. There is no way to know if an individual simply entering a park is going there to meet five or more people and stand within 6 feet of them.  If police see people entering parks in groups of five or more, they can be stopped.  If police see people refusing to physically distance themselves on their way into a park or in a park, they can be stopped. Additionally, police in Nova Scotia were only pressed to take stronger enforcement action since March 27th. The province initially allowed for a more voluntary approach to compliance with Dr, Strang’s order and the park ban.  There is no clear evidence that there was ever an issue with enforcement practicality before the park ban.

The already over-extended powers are being abused, giving indication that the police have been given too much leeway through the park ban. The Nova Scotia Advocate reported that on April 2nd a woman was stopped by police at Clayton Park on a walking trail and questioned about whether she lived in the neighbourhood.  There is no order in effect that requires a person to stay in their own neighbourhood. This was unquestionably a street check, which is a police stop where there are no reasonable grounds for the stop, and where police are merely fishing for information. No one has to provide any identification, submit to any search or answer questions during these stops and police have no authority to detain a person under these circumstances.  In 2019, an extensive report was prepared for the NS Human Rights Commission by Dr. Scot Wortley of the University of Toronto’s Centre for Criminology & Socio-legal Studies, making a number of recommendations, including for police to respect a person’s rights by informing them that they do not need to co-operate with police information-gathering in a street check.  As the Nova Scotia Advocate article warned, people have reason to be concerned  that police have been given too much latitude and that it will predominantly affect racialized people who live in poor neighbourhoods. 

And what about mental health?

It is important to also keep in mind how crucial it is that people have the means to take care of mental health.  The federal government has acknowledged the stress people are under due to COVID-19 containment measures.  On their webpage on Mental Health and Coping during COVID-19, they note the importance of regular exercise and walks, as well as to, “make opportunities for children to play and relax.” Not everyone has a backyard, making access to parks for them even more important for them, as a place to get outside and further away from urban noise.  There have been reported concerns about a mental health crisis as a result of the anxieties and isolation due to COVID-19.

In conclusion

Denying people the right to enter parks, even if they are physically distancing and following the other conditions of Dr. Strang’s orders tightens the vice grip on many who are already feeling squeezed.  Even in times of emergency, we should not assume that every measure taken by governments is necessarily in our best interest and for our safety. We should educate ourselves and be vigilant about the possibility of emergency circumstances giving the state the opportunity to overcompensate and thereby limit the rights of people, further restricting access to spaces that are necessary for our well-being.  The ones who will predominantly suffer under the enforcement regime are poor and working class people, and among them, predominantly Black and other racialized people who have historically been targeted to a disproportionate level. 

Furthermore, we should consider how important access to public spaces will be when the pandemic is over.  People will need to gather in order to assert the interests of working class and marginalized people who were the most severely impacted by the pandemic.  If we give the state more leeway to restrict our rights now, that power advantage can be used in the face of opposition the state may face down the road.

Asaf Rashid is currently on leave from practice and living in Halifax.

Suspended evictions and income supports fail to address vulnerability of working people

Before COVID, there was already an affordable housing crisis, poor wages relative to the costs of living and multitudes of working people with no savings and a single paycheque or less from living on the streets.  Government supports during the pandemic fall far short and without action, there will be major crisis of housing insecurity and homelessness. Housing is not currently a right protected under any provincial or national law, including the Canadian Charter of Rights and Freedoms.  What the present crisis demonstrates is the necessity of making housing affordable and accessible to everyone.

There have been suspensions of evictions in provinces including Ontario, Quebec and Nova Scotia; expansion of EI Sickness benefits to cover those who have had to stay home due to quarantine or self isolation; Emergency Care benefits for those who don’t qualify for EI Sickness benefits, but are sick or quarantined; and, Emergency Support benefits for those who are not eligible for EI, but face unemployment.   Overall, the government of Canada rolled out a $27 billion dollar aid package for businesses and workers and $55 billion in tax deferrals.  And Canada’s major banks are allowing a mortgage deferral payment for up to six months.  These are all band-aids on a broken system.

Before COVID hit, there was a substantial gap between incomes and affordability of housing and the costs of living in general, and despite numerous and recent calls for change, nothing has improved.  It is important to note that as soon as workers have been unable to work due to COVID layoffs and reductions of work, there has been an immediate pinch.  Working class people, by and large, have little to no savings.  Many are still fighting for a mere $15-dollar minimum wage. One paycheque away from the abyss is the reality now facing so many.

As for the COVID-related protections against evictions, they go by province, and don’t go that far.  In Nova Scotia, the suspension of evictions is only for those whose incomes have been affected by COVID.  But there is no indication that these tenants will be excused from the rental debt accumulated over the course of the pandemic.  There is no freeze on rental payments.  The Nova Scotia government has not suspended non-COVID-related evictions, even though evictions for anyone will likely expose those individuals to great risk — they will either become homeless and possibly take up residence in shelters, begin couch surfing or will be exposed in the course of moving.

What of the federal government’s income supports? The EI sickness benefits require that one has worked 600 or more hours and is actually forced to self isolate or quarantine due to illness or suspected illness.  Temporary foreign workers are left out regardless, which is its own major issue.  Even though no medical certificate is required for the sickness benefits in COVID cases, there has to be a demonstrated risk of illness that lands a person into isolation or quarantine, if not sick and in the hospital.  Even with 15 weeks of EI benefits, the recipient only draws 55% of their income to a maximum of $573 per week.  Low wage workers will be far below that amount.

As for those who don’t qualify for EI, but otherwise meet the sickness requirements noted above, the Emergency Care benefit only provides a maximum of $900 biweekly for up to 15 weeks.  Workers who have lost their job due to COVID’s impact will have access to Emergency Support benefits, which is currently an unknown amount, and expected to roll out in April.  However, it is unreasonable to expect it to be anything more than EI Sickness or Emergency Care benefits.  Looking at all the measures that have been put in place, precarious, relatively lower-waged workers before the pandemic will still not have the cash flow needed to meet the costs of living.

When you add the reduction in income due to COVID to a lack of any government-enforced rent reductions or rent payment freezes, you end up with a deluge of evictions, eventually.  The rental debts that will exist after the COVID crisis subsides will leave many struggling to survive and stay housed due to the inadequacy of government actions.

The present situation in Nova Scotia, mirroring that across the country, is one in which working class people with no savings, who largely rent are now paying the price for a lack of rent control, affordable housing crisis and general lack of any effective regulation to keep housing accessible and available to all.  The Canada Mortgage and Housing Corporation states that housing is only affordable if it costs less than 30% of the before tax household income.  That is far from the reality for many workers. Currently the vacancy rates in Nova Scotia are approximately 1.4% and an even worse 1% in Halifax, with affordable housing at a miserable 0.5%.  Many people currently housed are struggling with rent affordability and possible homelessness as prices are raised, with a recent story about a woman in Sackville as one example.

Excessive and increasing rental prices and a lack of affordable and available housing was a crisis before anyone breathed a word about COVID. They are urgent issues to address now because in a few months, increased precariousness in the fallout will make matters worse.

The law as it currently exists will not go very far to protect tenants.  There has to be changes.  The calls for action have been repeated many times: affordable housing, rent freezes, rent control and even rent reductions.  Governments over the years have ignored every call for action, and the situation has only gotten worse.  Housing is not yet recognized as a right, so homelessness and housing precarity is considered legally acceptable to all levels of government.

Tenant organizing is really the only solution to winning necessary changes in the law to better protect tenants.  Tenants in Toronto’s community of Parkdale, through Parkdale Organize, are organizing for their members to keep their rent during the pandemic: “Tenants keep your rent. Landlords keep your distance.”  They acknowledge that it is against the rules to withhold rent, but despite that, they push forward out of necessity, especially during the pandemic.  It will be interesting to see how the issue of necessity may be dealt with when the time comes:

There is strength in numbers. Thousands of us deciding to keep our rent gives us the resources to better provide for the health and well-being of our families and communities. Social distancing helps stop the spread of COVID-19. It doesn’t stop us from taking the collective action of keeping our rent.

This organizing is happening even with social distancing.  It is one example among many of working people organizing to protect each other in the days to come.

Racial Profiling at Walmart: the case of Santina Rao

On the morning of February 19, 2020, Santina Rao will be in the Halifax provincial court for charges arising out of her arrest at Walmart on January 15, 2020, which many – including me – see as the result of racial profiling.  The proceedings continue despite public pressure on the Crown to drop the charges, including a petition signed by approximately 6,000 at last count.

What happened to Rao case raises a number of issues, including human rights, culpability of the police and Walmart and the public interest in withdrawing charges that stem from racial profiling.

 

What happened?

The incident happened on January 15, 2020, when Santina Rao, a Black single mother with two young children, was shopping at Walmart at the Halifax Shopping Centre when she was wrongly accused of shoplifting, and violently arrested by Halifax Regional Police.  She was left with a black eye, a broken wrist, concussion and trauma from the incident.  In the end, she was NOT arrested for shoplifting, but for causing a disturbance, assault causing bodily harm to an officer, and resisting arrest.  Interestingly, the charges were not sworn until January 30, two weeks later.

A good description of the events can be found in a story about the events in the Halifax Examiner, by El Jones

Rao was shopping with her two young children, age 3 and 15 months. She paid for $90 worth of items in the electronics department. The cashier told her she couldn’t pay for her produce in that department because it had to be weighed. On her way to the checkout, she placed the bag with her items on her stroller, and stopped in the toy aisle to buy her daughter a Barbie. She planned to pay for her purchases at the check-out before she left the store.

In the toy aisle, in front of her young children Rao was approached by three floor walkers and two police officers and accused of stealing items and concealing them. She says she offered them to search her bags and even the stroller.

Instead, the officers continued accusing her of theft. When she became stressed and agitated in response to their questions, they attempted to arrest her for causing a disturbance and called for backup. Rao was accused of causing a disturbance because she became angry and protested being accused of being a thief.

In the end, Rao said six cops were surrounding her.

(…)

Rao suffers from trauma from experiencing violence in her life, and she says that she let the officers know that she has PTSD. When the officers began grabbing her with her children watching, she explains she reacted out of terror. She alleges that as she became upset with her treatment by police and protested her innocence, she was told she was making herself look “worthless” in front of her daughter.

One officer tried to grab her child and pull her away. When Rao tried to protect her daughter, she says the police escalated the violence against her.

(…)

The rest of the story by El Jones covers much of the other context and details of how events unfolded.

On Friday January 17, there was a late afternoon rally to support Rao.  The dozens in attendance called out Walmart for racial profiling, called out the police for the same reasons and for police brutality and demanded police to drop the charges against her.

Public pressure and attention led to the province’s Serious Incident Response Team (SIRT), a police watchdog, to investigate the incident, which they decided to do on January 21.  SIRT can be brought into play in cases where there is evidence that police actions crossed a line.  Investigations could lead to charges against the police, though such a result is extremely rare due to the latitude the police have with use of violence.

Rao has also been banned by Walmart Canada from every store in the country.

 

Human Rights and racial profiling

Under human rights law, businesses in Canada are prohibited from refusing to sell to someone on discriminatory grounds. If customers are forced to leave for discriminatory grounds, thereby being humiliated and unwelcomed, it is also a human rights violation.  In 2013, the Nova Scotia Human Rights Commission held that the Halifax Alehouse discriminated against a Black customer who was forced to leave then arrested outside the Halifax Alehouse.  They awarded damages of approximately $7,000 in damages to him.

In Rao’s case, there are a lot of parallels.  Add to her case that she is also banned from every Walmart in Canada.

But while racial discrimination by retail businesses like Walmart is illegal, they still do it.

Racial profiling and ensuing police brutality experiences like those of Rao are common because they are very much integrated into a system of loss prevention.  It is already established that Walmart practices racial profiling as evidenced by locking hair products for Black women as a loss prevention strategy, which is them targeting their resources for loss prevention to aim at Black people, which has come under controversy and resulted in a lawsuit against Walmart in California.  The same profiling plays out in instructions provided to security guards / loss prevention officers.  Security guards are trained to keep an eye on people with such descriptions who they are taught are suspicious, which is racially biased.  In 2016, CBC’s Marketplace did an investigation on racial profiling by security guards in Canadian retail, Shopping While Black, and discovered that racial profiling does take place.  Marketplace shoppers dressed and acted the same way in test stores, with the only differences being the colour of skin or ethnic background.  Black and Indigenous people were intently watched more so than people of a white complexion.  In one case, a store even had codes for various people of colour used to plan their surveillance, which was heightened for people of colour.

The consequences of the heightened surveillance and the biases that come with it are spectacular and violent takedowns such as in the case of Rao.  It is safe to say that very few cases of racial profiling will make the news due to the difficulty many would have in putting themselves in a spotlight.  But there have been other incidents of racial profiling at Walmart that made the news, such as in a 2017 case in Calgary

 

The case against Rao’s charges

Despite all the racial biases that led to Rao’s violent arrest and ensuing trauma, the law appears to be on her side due to how the events played out.  The most important key to her favourable legal position is that the police did not end up charging her for shoplifting, but then still proceeded to charge her for causing a disturbance, assault causing bodily harm to an officer, and resisting arrest.  They really did not have a basis for the shoplifting charge.  She had not left the store or passed through any checkouts when she was arrested, but remained at all relevant times in the main body of the store where merchandise is located.  The officers were initially suggesting that she was attempting to conceal or had concealed produce on her stroller, which was an attempt to show intent to commit theft.  As someone who has experience with criminal defence, I can say that there was never any reasonable basis for the shoplifting charge.  As El Jones points out in her Examiner article, Rao was even told by the cashier at electronics to go to a produce cash to have her items weighed when she attempted to pay for all items at electronics.  There was never an issue about having her items in the stroller at that point.  Nothing was concealed.  Her stroller was her shopping cart.  But she never had the opportunity to purchase her produce because the police violently arrested her before she got to the other cash checkout.  Even her attempts to show the police the produce on her stroller, and how she was not concealing anything did not cause the police to stop their investigation.

It was incumbent on the police to not simply follow the request of the Walmart security guard to arrest Rao, but to actually investigate the allegations in order to comply with their own standards for a police investigation.  They are required to make observations on the scene.  They are not supposed to ignore relevant information available to them, including if the person they are arresting is providing them with a counter explanation.  They could have applied basic reason to see that she was not attempting to hide anything, as she was explaining to them.  They also could have spoken to the initial cashier at electronics who did not raise any alarm.  They did not follow a course of reasonable investigation, but moved quickly to detain — by the mere presence of several police and security around her – then arrest Rao, with officers also trying to separate her from her kids, putting her under even more distress.

The police may have opened themselves up to a future lawsuit for negligence, breaches under the Canadian Charter of Rights and Freedoms and possibly punitive damages due to the racial profiling.

 

Self-defence

Since the shoplifting charge is gone, the police are left with an unlawful arrest.  By law, a person is allowed to resist an unlawful arrest by using reasonable force in the circumstances.  The number of officers, the size difference between Rao and the officers, the context of her being separated from her children by police as they arrested her and any previous trauma (previous abuse by police or similar encounters) that the incident triggered are all relevant to what was reasonable in the circumstances.  Here is an example of a judge in Alberta ruling that a lady who was unlawfully arrested was justified in biting an officer because it was reasonable in the circumstances:

R.v. J.D.C., 2009 ABPC 346:

[60]           Since Ms.C. was not lawfully arrested, she cannot be found guilty of assaulting a peace officer if the force she exercised was reasonable.  Was biting Officer Bennett reasonable under all the circumstances?  Ms.C. was arrested at approximately 7:15 p.m. and shortly thereafter transported to the Grande Prairie RCMP detachment.  She arrived at the detachment at approximately 7:35 p.m. and was placed in cells at approximately 7:45 p.m..  Officer Cote had attempted to use soft hand techniques on her to restrain her on two occasions and had partially pepper sprayed her on a third.  She had not been cautioned or Chartered.  Ms.C. had indicated to the officers that she would hit them if they touched her.  She said this at least once to Officer Cote and although Officer Cote did attempt a soft hand technique on her, Ms.C. restrained herself and did not hit her.  She also said it to Officer Bennett and again, although he did touch her, she did not hit him.  What she did do was bite him on the hand during the course of a struggle where she was taken to the floor by two officers and restrained by a third and while she lay on her stomach with the three officers holding or on top of her.

That is just one example which covers both resist and assault of a police officer.  As for the causing a disturbance charge, if Rao is found to be within the confines of reasonable force in her actions during her arrest, it should not be possible to find her guilty of causing a disturbance, which is described in the Criminal Code as “fighting, screaming, shouting, swearing, singing or using insulting or obscene language.” It would be a contradiction to find her guilty of causing a disturbance if her actions were justified in the course of resisting an unlawful arrest.

 

Dropping the charges

I do not think it makes sense for the prosecution to continue to pursue charges against Rao because it fails the “decision to prosecute test”, which has 2 factors: (1) Is there a reasonable prospect of conviction? (2) Does conviction serve the public interest?  If there is no reasonable prospect for conviction, the public interest does not matter.

Based on all the facts that have been made public, I do not see a reasonable prospect for conviction. For convictions, a judge would have to find, beyond a reasonable doubt, that Rao committed the offences for which she is charged.  It is hard to see how a judge could find beyond a reasonable doubt that Rao went too far in her actions to oppose an unlawful arrest, considering she was surrounded by several officers, attempted to verbally address the issue with the officers first, then had her daughter grabbed from her and that she walked away with a black eye, swollen neck, other bruises and scars around her wrists from being tightly cuffed. Further details indicate she also suffered from a broken wrist and had a concussion.  Her background of trauma would be relevant to what was reasonable in the circumstances concerning her intent.  Even if there were any minor injuries of scratches to police, they could hardly compare to what happened to her.

If it is somehow found that there is a reasonable prospect for conviction, the public interest should play a big role.  Public confidence in the administration of justice is a major part of the public interest test, which includes, “whether the consequences of a prosecution or conviction would be disproportionately harsh or oppressive”.  Considering the illegalization of carding in Nova Scotia due the racial bias in its use, there is plenty of evidence to support a public interest in stopping prosecutions that are associated with racial profiling.

Asaf Rashid is a criminal defence and immigration lawyer who is on a temporary leave from practice while he is doing other work in Halifax

Public interest and climate justice protests

As another climate strike date approaches on November 29, 2019. There will be people taking to the streets and there is always the possibility of disruptive actions to create more pressure.

 

It is notable that the climate justice movement’s unrelenting action appears to be  creating a new normal.  On November 18, 2019, the Crown dropped mischief charges against 20 people who were arrested as part of the Extinction Rebellion (XR) protests in Toronto, which non-violently, and temporarily, occupied and blocked the Bloor Viaduct bridge on October 7, 2019.  XR is part of a global movement of using civil disobedience to push for action on climate change.  This was great result for those who were arrested because it relieved them of costs in money, time and anxiety in dealing with the criminal justice system.

 

The Crown decided not to prosecute because it, “would not being in the public interest”.  The decision means, in part, that non-violent civil disobedience to push for action on climate change has gained a level of legitimacy according to the justice system.  But the decision was not made in a vacuum.  That result was due, mainly, to the level of urgency of the issue and the normalization of the endless protests across the country, and globally, to ply pressure on governments and the extractive industry – and industry generally – for decisive action on the issue.  The XR protesters also has solid representation as their defence lawyer, Mike Leitold, took the position that the prosecution was not in the public interest.

 

But what does it mean to be “not in the public interest”?

 

Prosecutors have a standard for deciding whether to prosecute that is broken down into two parts: (1) whether there is a reasonable prospect for conviction and (2) whether it is in the public interest.  The first part deals with whether the prosecution has enough evidence to prosecute.  The case of mischief would have been easy to prove in the case of an intentional disruption of the use of a highway.  The criminal charge of mischief can be proven if someone, “renders property dangerous, useless, inoperative or ineffective”, or, “interrupts or interferes with the lawful use, enjoyment or operation of property.”

 

The whole decision to drop rested on the public interest issue.  Prosecutors have discretion to decide whether to prosecute is in the public interest, especially if the people accused have no criminal record, the offence does not involve violence, those arrested were cooperative and there if not prosecuting would keep public confidence in the justice system.  These factors all worked favourably for the XR protesters.  Much of the public would probably lose confidence in a justice system that prosecutes ordinary people, including kids and seniors, for taking direct action for an issue that even mainstream politicians have agreed is critical for the future.

Ontario Legal Aid Cuts: class warfare

Legal aid is necessary because legal services cost money, and not everyone can afford them. Lives and fundamental rights to security of the person are often on the line when facing legal challenges. Our legal system doesn’t work for the poor and working poor of society. Recent cuts to Legal Aid  Ontario (LAO) represent a piece of a rotten whole and provides an opportunity to pose larger questions about access to justice beyond breadcrumbs. In this post, I will reflect on these issues, including the role of legal aid,  and the prospects for larger challenges to access to justice.

 

The cuts 

On April 11, the Ford government of Ontario cut Legal Aid Ontario (LAO) by 30%, which amounts to $133 million. As part of the gash, they almost entirely eliminated refugee and immigration coverage, with assistance for filling out Basis of Claim forms still in tact (this is about as minimal as possible). From my understanding, zero legal aid money will go towards refugee hearings, immigration detention reviews and challenges to deportations and other immigration issues. Many will face the peril of navigating the complex maze of Canadian immigration law, squared against legally armed government lawyers, defenceless. Losses will mean self-reps never making their case, getting deported to perilous circumstances, staying locked in immigration detention, being separated from their children, etc.

Cuts to LAO will impact low income people facing a host of legal issues as funding cuts are downloaded by LAO onto community legal clinics.  Parkdale Community Legal Services (PCLS), the largest of these clinics has been put on notice. They have been delivering necessary legal services to their community since 1971 and currently assist with legal issues including housing, worker’s rights, immigration, social assistance and violence.  In a May 3 statement from their board and staff, they stated:

On April 30th, we received communication that Legal Aid Ontario is unwilling to commit to more than one year of funding to the new lease and is unwilling to support any set up costs at the next site. The alternative option presented was for us to move out of our community.

LAO has also indicated that PCLS’ immediate and ongoing funding is uncertain.

The cuts are aimed at poor and working class people facing numerous legal challenges. In response to the cuts, Dana Fisher, spokesperson of the union representing LAO lawyers told CBC:

You’re looking at immediate impacts to defending people’s rights to liberty, to access to justice, to people being able to fight for custody to their children and access to their children, including women who are fleeing domestic violence.

(…)

From the immigration perspective, these are individuals who are facing extradition and torture and persecution and these are real lives that are going to suffer as a result of these cuts,”

 

Why Legal Aid?

Our legal aid system largely developed post World War II in the course of the substantial expansion of (uneven) wealth in society. In the UK, the 1949 Legal Aid and Advice Act was created to regularize the support for poor people having to navigate the legal system.  In Ontario, the Law Society Amendment Act was established in 1951. It helped establish funds for a small number of criminal and civil cases. In the 1970s, community legal clinics grew and eventually spread across the Canada, to assist in the delivery of some legal services to those in need (see this link for a brief overview from LAO). The only reason, I would argue, that legal aid was created at all was due to a contradiction in the rule of law.  The rule of law, one of the axioms of the Canadian legal system, states that no one is above the law and that the law applies equally to all (whether sic king or pauper). The legal system is not supposed to be only for the rich and powerful to abuse the poor. Yet, with a money-based legal system, that is exactly what happens.  To stem the bleeding and offer a palliative to the poorer in society, we have legal aid. It is a painkiller and coagulant to a legal system where the poor are not supposed to have the same chance as the rich.

 

The bigger picture of inaccessible justice

In 2013 the Canadian Bar Association issued a report titled, “Reaching Equal Justice”, which was both an overview of the depth of the problem of inaccessible justice and a call to action by lawyers to do more to stem the gap. The authors noted that there was — and nothing has changed on this front — overwhelming public support for legal aid and measures to make legal services accessible (page 16):

While there is generally low public awareness about legal aid, opinion polls have shown that when asked more detailed questions, people express strong and consistent support for providing adequate publicly funded legal aid. Polls have shown overwhelming support (91-96%), with 65-74% expressing the view that legal aid should receive the same funding priority as other important social services. Canadians believe justice systems must be accessible to all to be, in fact, just – and publicly funded services are required to get to equal justice. The current lack of confidence in our justice system suggests instead a perception that justice is inaccessible and even unfair.

It is no wonder that people think that justice is inaccessible. By and large, it is for most. The entire superstructure of legal services, involving the necessity of ongoing training, membership, liability insurance and overhead makes it extremely challenging to offer low cost legal services. The apparatus simply is not designed to deliver these results, but to favour high costs for wealthier clients and serves to give prosecution a default advantage.

As someone who has struggled to make legal service affordable, as a new lawyer, I can say that the challenge of trying to offer affordable services in private practice can be a balancing act on the edge of a cliff, where the lawyer and the client’s financial survival are both on the edge.

 

The present context

The cuts to LAO could raise a few issues about the legality of further cuts to legal aid, and has the opportunity to create  wedge to bring constitutional challenges to other exclusions from mandated government support for legal services. In a recent article, law professors Sean Rehaag and Sharry Aiken stated:

Currently, legal aid must be provided in many criminal proceedings as a matter of constitutional law. The result is that legal aid resources go largely to criminal law services, at the expense of legal services for low-income people facing eviction, intimate partner violence, workplace discrimination, deportation, being cut off social assistance and other important legal challenges.

(…)

… A Supreme Court of Canada case, New Brunswick v G(J), establishes that legal aid is constitutionally required in certain non-criminal legal proceedings where the rights at stake are very serious, where the proceedings are complex and where the litigant is not capable of self-representing — all factors that are present in many refugee hearings.

(…)

It would be ironic if the Ford cuts lead to litigation that establishes not only a constitutional right to publicly funded counsel for refugees, but that also helps pave the way for constitutionally mandated legal aid for low-income and disproportionately racialized people with other important non-criminal law legal needs.

The G(J) case was a marker for access to justice in Canada. It constitutionalized the right to legal aid in cases where parents risk losing custody of their children to the state. At the heart of the matter was the effect that denying legal representation had on the psychological or physical integrity of a person:

1   The Chief Justice — This case raises for the first time the issue of whether indigent parents have a constitutional right to be provided with state-funded counsel when a government seeks a judicial order suspending such parents’ custody of their children.  It comes before the Court as a result of Legal Aid New Brunswick’s decision not to provide legal aid to the appellant after the Minister of Health and Community Services of New Brunswick sought to extend an order granting the Minister custody of the appellant’s three children for an additional six months.  The decision not to provide the appellant with legal aid was made pursuant to a policy in force at the time of her application which stipulated that no legal aid certificates would be issued to respondents in custody applications made by the Minister of Health and Community Services.

2  I have concluded that the Government of New Brunswick was under a constitutional obligation to provide the appellant with state-funded counsel in the particular circumstances of this case.  When government action triggers a hearing in which the interests protected by s. 7  of the Canadian Charter of Rights and Freedoms  are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair.  In some circumstances, depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the government may be required to provide an indigent parent with state-funded counsel.  Where the government fails to discharge its constitutional obligation, a judge has the power to order the government to provide a parent with state-funded counsel under s. 24(1)  of the Charter  through whatever means the government wishes, be it through the Attorney General’s budget, the consolidated funds of the province, or the budget of the legal aid system, if one is in place.

(…)

58  This Court has held on a number of occasions that the right to security of the person protects “both the physical and psychological integrity of the individual”: see R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 173 (per Wilson J.); Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123, at p. 1177; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at pp. 587-88.  Although these cases considered the right to security of the person in a criminal law context, I believe that the protection accorded by this right extends beyond the criminal law and can be engaged in child protection proceedings. …

As Rehaag and Aiken pointed out, cuts to funding for legal aid for refugees could be considered a violation of the rights to security of the person, as set out in G(J). Constitutional challenges can raise the level of conversation about the purpose of legal aid and broader issues of access to justice.  However, attention must be drawn to the far larger problem, whereby poorer workers, who are ineligible for legal aid, will still be unable to afford legal services for many important cases, including when they face criminal charges, evictions or lawsuits.

In the meantime, lawyers, legal aid workers, staff of community legal clinics who are being impacted by the cuts and are pushing back, such as PCLS and the union representing legal aid lawyers.

Health care for all: immigration status as a ground of discrimination

February 12, 2019 was a national day of action to call for the inclusion of non-status people in our health care system in Canada. The call to action touches on a gaping hole in human rights protections in Canada: the exclusion of immigration status as a ground for discrimination.

Anyone who has less than Canadian citizenship status in Canada faces discrimination, with those with the lowest status, being non-status, facing the worst of all. Despite this daily reality, immigration status is not included as a ground of discrimination in Canadian law. Canadian law only goes so far as to count citizenship (included in the Ontario Human Rights Code) as a ground of discrimination, but not immigration status more generally. This leaves countless people unprotected.

This post will focus on access to health care for non-status people by focusing on the case of Nell Toussaint and the decision at United Nations Human Rights Committee about her case, which also rebuked the general exclusion of non-status people in Canada from health care. With renewed pressure on the government to include non-status people, it is important to put some more focus on it.

Charter anti-discrimination law

I will only focus anti-discrimination law under the Canadian Charter of Rights and Freedoms because the subject of this post only deals with that.

Section 15 of the Canadian Charter of Rights and Freedoms states:

  1. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (84)

It has a very short list; however, each item on the list is not a closed box, but open to interpretation if legal precedents are set.* For example, “sex” now includes sexual orientation. In contrast, “national origin” does not include immigration status. In order to include a new category, it requires showing that there’s some “immutable” characteristic that is being used to discriminate against a person. That means something that is a “deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs.” (See Supreme Court of Canada Egan case). The unchangeable aspect has been criticized because, for example, religion is sometimes changed without great personal cost.

One might think that national origin or citizenship is the same as immigration status. It isn’t. Using an example from provincial human rights law, discrimination based on national origin would be, for example, a landlord denying a possible tenant an apartment because that possible tenant is from Pakistan, and the landlord doesn’t rent to people from Pakistan. Discrimination based on immigration status covers many more people. Examples include the one being discussed in this post, as well as the relatively lower standard of non-status person’s liberty in immigration detention compared with the liberty interest of everyone else with regards to detention under the criminal justice system (a subject for another day).

Health care for non-status people

People without status in Canada do not have any guaranteed access to heath care, even for urgent care, unless there is a demonstrated public safety risk (i.e. only if people considered more human are affected). People without status, who may number ½ million in Canada or more, stay sick or injured because they often have no recourse, except for limited services of community health clinics in some cities. The troubling absence of proper access to the of non-status people to healthcare was highlighted in a rebuke of Canada’s denial of non-status people by the United Nations Human Rights Committee in 2018.

On July 24, 2018, the case of Nell Toussaint was decided by the United Nations Human Rights Committee (see Toussaint decision). She came to Canada in 1999 as a visitor, but then remained and worked for many years in Canada. She initially paid out of pocket for her health care expenses. This severely limited her ability to access health care when needed. By 2008, she developed chronic fatigue and her health began to deteriorate further. By 2009, her condition became life-threatening, as she was diagnosed with pulmonary embolism and complications from poorly controlled diabetes. The Committee decided that Canada acted in a discriminatory fashion in her case and commented that the omission of non-status people in Canada from health care coverage through the Interim Federal Health Program (IFHP) was systemic discrimination. Canada was ordered to compensate her (emphasis added):

11.6 The Committee notes the author’s claim under article 26 that excluding her from IFHP coverage on the basis of her “immigration status” is not an objective, proportionate or reasonable means of deterring illegal immigration, in particular as her life-threatening health conditions were not taken into account. The Committee also notes the State’s party submission that in allocating public health care funding, it may reasonably differentiate between those with legal status in the country, including immigrants, and foreign nationals who have not been lawfully admitted to Canada and that legal residence is a neutral, objective requirement that cannot be considered as a prohibited ground of discrimination.

11.7 The Committee recalls its General Comment No. 18 (1989) on non-discrimination, in which it reaffirmed that article 26 entitles all persons to equality before the law and equal protection of the law, prohibits any discrimination under the law and guarantees to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. While article 2 limits the scope of the rights to be protected against discrimination to those provided for in the Covenant, article 26 does not specify such limitations and prohibits discrimination in law or in fact in any field regulated and protected by public authorities. The Committee also recalls that in its General Comment No.15 (1986) on the position of aliens under the Covenant, it stated that the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. While the Covenant does not recognize the right of aliens to enter and reside in the territory of a State party, the Committee also stated that aliens have an “inherent right to life”. States therefore cannot make a distinction, for the purposes of respecting and protecting the right to life, between regular and irregular migrants. More generally, the Committee also recalls that not every differentiation based on the grounds listed in article 26 amounts to discrimination, as long as it is based on reasonable and objective criteria, in pursuit of an aim that is legitimate under the Covenant.

11.8 The Committee considers that in the particular circumstances of the case where, as alleged by the author, recognized by the domestic courts, and not contested by the State party, the exclusion of the author from the IFHP care could result in the author’s loss of life or the irreversible negative consequences for the author’s health, the distinction drawn by the State party, for the purpose of admission to IFHP, between those having legal status in the country and those who have not been fully admitted to Canada, was not based on a reasonable and objective criteria, and therefore constituted discrimination under article 26.

(…)

13. In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to persons whose rights recognized by the Covenant have been violated. Accordingly, in the present case, the State party is obliged in particular to provide the author with adequate compensation for the harm she suffered. The State party is also under an obligation to take steps to prevent similar violations in the future, including reviewing its national legislation to ensure that irregular migrants have access to essential health care to prevent a reasonably foreseeable risk that can result in loss of life.

The decision is no binding on Canada.

Along the way to the decision of the UN Human Rights Committee, Ms. Toussaint sought a review of her rejected coverage by the IFHP. Her application for review was further rejected by the Federal Court and the Federal Court of Appeal. Interestingly, the Federal Court found that her rights to life under section 7 of the Charter were infringed as a result of being denied IFHP coverage. However, the treatment was considered justifiable, as it was held that Canada could lawfully deny non-status people coverage. The reasoning applied a rather narrow assessment of “choice”, Justice Zinn stating: “Although she entered this country legally, she chose to remain here illegally; there is nothing stopping her from returning to her country of origin.” (at para 93). Leaving a place that she built a network of supports to go somewhere that she had no assurances should not be considered a fair choice.

That being said, there was an interesting analysis about discrimination that may have left a door open for immigration status as a potential analogous ground. The Federal Court did not find that she was discriminated against due to the nature of her disability. With regards to immigration status, Justice Zinn said the following very interesting words (emphasis added):

[81] (...) Only if “immigration status” is an analogous ground could the applicant’s exclusion from IFHP coverage be said to violate s. 15(1) of the Charter.

 [82] The applicant did not argue that “immigration status” was such an analogous ground.  It is not for the Court in Charter cases to construct arguments for the parties or advance them on their behalf.  Given the applicant’s failure to argue that “immigration status” was an analogous ground, the applicant’s s. 15(1) argument must fail.

I believe those words are indicative that the Court would have readily considered the inclusion of immigration status as an analogous ground.

Toussaint decision and immigration status as ground of discrimination   

The decision is not binding on Canada. Even though it is an order, it is not an order Canada must follow. That being said, it does have application, perhaps more than may be apparent at present. First of all, while a decision of the UN Human Rights Committee is not binding on Canada, the International Covenant on Civil and Political Rights (Covenant) was signed and ratified by Canada, with much of it being adopted into the Charter and human rights law in Canada … just not the part about “status” as a ground for discrimination.

The UN Human Right’ Committee’s conclusion about discrimination based in immigration status found a violation of the following section of the Covenant (which sounds close in many respects to s. 15 of the Charter):

26. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

That brings it close to existing law in Canada. Supreme Court of Canada jurisprudence brings it closer. The 1999 Supreme Court of Canada decision, Baker v. Canada (Minister of Citizenship and Immigration) held that International law, even if not binding on Canada, cannot be ignored. Speaking about the international Convention on the Rights of the Child, the majority stated:

69 (…)   I agree with the respondent and the Court of Appeal that the Convention has not been implemented by Parliament.  Its provisions therefore have no direct application within Canadian law.

70  Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.  As stated in R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330:

[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional.  These constitute a part of the legal context in which legislation is enacted and read.  In so far as possible, therefore, interpretations that reflect these values and principles are preferred. [Emphasis added.]

This precedent has been applied countless times to, for example, help protect the best interests of children in decisions considering the removal of a parent from Canada.

Coming back to the subject at hand, the next time there is an opportunity to raise the issue of discrimination of a person based on immigration status, I think there is a case that it should be found an analogous ground due to the effect of the Toussaint decision and ongoing social pressure. The “immutable” characteristic required to add an analogous ground of discrimination to s. 15 of the Charter has some flex and has been responsive to social pressure in the past.

Immigration status is not easily changed. People exist in such a condition in Canada for months or years for complicated reasons. Just leaving may not be so easy.

_ _ _

*The Charter is almost impossible to amend, so the  analogous grounds approach is taken instead.

UN Global Compact for Safe Migration: It does not go far enough

On December 8, 2018, Canada stated that it would adopt the UN Global Compact for Safe Migration. What followed was an unsurprising and reactionary set of protests across the country. People protesting did so in order to try and oppose the idea of more people – who they don’t like – coming to Canada to stay. The reality is that the Compact does not instill any formal obligations on Canada and does not go nearly far enough to respond to the migration crisis.

In this post, I will try and explain what the legal meaning of this Compact is for Canada and demystify some of the issues with the Compact that opponents are raising. These include the idea that the Compact will compel Canada to let in more migrants, that Canadian media coverage will be forced to be pro-migration, and the issues raised with international cooperation among States to support more migration. I will also suggest that far more is needed to support those who are moving due to adverse conditions in their countries of origin. I will not be discussing economic migration in any significant detail because I think that will better be placed in its own piece.

 

The Compact

The (GCSM) was arrived at on July 18, 2018. The Compact is nothing more than a pact to cooperate in order to respond to an unprecedented global crisis of displacement, where over 68 million people have been forcibly displaced and over 25 million have been the victims of persecution. It simultaneously sets out to build cooperation to better facilitate improved economic migration and cooperation to alleviate security concerns people attempt to make journeys to new homes. The issues that the Compact proposes to address include:

  • the increasing number of people displaced due to natural disasters and climate change-induced insecurity, including due to flooding, famine, droughts, shoreline erosion, loss of land to sea level rises, etc;
  • the increasing number of people forced to flee due to persecution due to violence and the threat of violence in a world of increasing insecurity
  • a world of mobile people, where economic migration is both necessary and unstoppable

A large part of the Compact calls for States to better cooperate to develop early warning systems for disasters and to do better disaster mitigation. This is all to prevent the need for people to move from their homes. Another objective is to improve “skill-matching”, so that businesses in different part of the world can meet their employment needs with migrant labour, whether permanent or temporary. Big businesses are no doubt a major driver of this aspect of the Compact. A further objective of the Compact is to ensure global security cooperation, to prevent the movement of those without proper identification. Some of these people without proper identification may be the most precarious of all, obtaining any identification possible to flee insecure conditions. Canada’s Immigration and Refugee Protection Act and Regulations already allows leeway to people with false identification if they procured it in the urgency of trying to flee persecution.

The Compact does not actually change any international or domestic laws. It does not improve or even alter legal entitlements or rights to claim refuge or immigrate to Canada. The Compact does not even come close to a so-called free-for-all for people around the world to move. It does nothing to open borders. It falls short of giving actual responsibility to signatory states to take in more migrants.

 

The Legal Authority of the Compact?

In the first week of December, there was a barrage of media about the Compact forcing Canada to let in more migrants, covering Conservative leader Andrew Scheer’s pronouncement that the Compact was legally binding and would “threaten Canadian Sovereignty“. There were responses to this inaccurate statement.

The Compact is not legally binding, but a statement by all signatory States to do their part for safe migration. It is a follow up to the 2016 New York Declaration for Refugees and Migrants, which is also not legally binding. Specifically, the Compact states (point 7 of the preamble):

This Global Compact presents a non-legally binding, cooperative framework that builds on the commitments agreed upon by Member States in the New York Declaration for Refugees and Migrants. It fosters international cooperation among all relevant actors on migration, acknowledging that no State can address migration alone, and upholds the sovereignty of States and their obligations under international law.

Since it is not legally binding, no state can be compelled to do anything that is stated in the Compact. There is no penalty for disregarding any or all of the objectives in the Compact. For good measure, the Compact is carefully worded so as not to avoid the language of legal obligations, but focuses instead on calls to action. It is an aspirational document.

Still, the Compact is not legally meaningless. It will give direction to existing immigration laws and regulations. The basis for this reasoning has been with us for a number of years already. Even without domestic legislation to adopt international treaties, conventions, compacts or other international instruments, Canada is expected to follow the values and principles of signed international commitments when there are no legal barriers to doing so. This was stated by former Supreme Court of Canada justice former Justice L’Heureux Dubé in the 1999 Supreme Court of Canada decision, Baker v. Canada (Minister of Citizenship & Immigration).

Now that the Compact is in place, and signed by Canada, it provides some better basis for arguing that environmentally displaced persons (aka climate refugees, environmental refugees, etc) should be able to stay in Canada on humanitarian and compassionate grounds. The argument would be that, by way of humanitarian and compassionate grounds, it would be wrong to send someone back to a country to face starvation or death or bodily harm through environmental conditions. But this is not the same thing as arguing that persons are environmental refugees and that Canada has an obligation to provide refuge to them. Refugee claimants can also raise a humanitarian and compassionate claim if their refugee claim fails.

 

Migrants controlling the media?

The Compact states the following under objective 17:

We commit to eliminate all forms of discrimination, condemn and counter expressions, acts and manifestations of racism, racial discrimination, violence, xenophobia and related intolerance against all migrants in conformity with international human rights law. We further commit to promote an open and evidence-based public discourse on migration and migrants in partnership with all parts of society, that generates a more realistic, humane and constructive perception in this regard. We also commit to protect freedom of expression in accordance with international law, recognizing that an open and free debate contributes to a comprehensive understanding of all aspects of migration.

This one objective has raised a very loud false alarm. As reported by Global News, Andrew Scheer stated that the Compact, “attempts to influence how our free and independent media report on immigration issues.”

Again, the compact is not legally binding. No media can be forced to report anything. Furthermore, the protection of freedom of expression under Section 2 of the Canadian Charter of Rights and Freedoms (Charter) prevents Canadian laws from forcing media to be pro-migration. The Compact is merely trying to instill better international cooperation to stop bigoted reporting about migrants and refugees, whereby refugees and migrants are vilified in the cause of jingoistic patriotic fervour for some purist ideal of citizenry, such as white nationalism. Canada agreeing to cooperate, “to eliminate all forms of discrimination, condemn and counter expressions, acts and manifestations of racism, racial discrimination, violence, xenophobia and related intolerance against all migrants in conformity with international human rights law,” is something Canada already has to do in order to be in conformity with its international commitments, human rights laws, the Charter, and all other laws that prohibit discrimination.

Following up on the Compact can finally lead to the clear recognition that grounds of discrimination include immigration status. There has been some movement in this direction at the Human Rights Tribunal or Ontario. A recent decision, provides a precedent for preventing employers from requiring proof of citizenship or permanent resident status for those who are legally allowed to work in Canada. However, this is very little protection. Legislation is needed to ensure protection against discrimination due to immigration status.

 

The protests

There were a number of protests against the Compact (examples: 1, 2, 3, 4; general coverage: 5), shouting slogans such as “Canadians first” and calling for Canada to withdraw from the Compact. It is likely there will be many more, especially in the lead up to the next federal election.

The interesting thing about these protests is that they are in response to exactly nothing. No laws were changed by Canada saying it would adopt the global Compact. All it does is set out a future direction that Canada should be expected to take in the near future.

I do not think that those who organized the protests, including the far-right, anti-Muslim and anti-migrant group La Meute, actually think that the Compact is legally binding. The Compact is clear enough that an average child could figure that part out. These groups are merely opportunists, who are trying to stir up a misinformation laced, anti-immigration fervour to pressure politicians to eventually change domestic immigration laws to build legal barriers at the border.

 

Binding international law to better protect environmental migrants is required

Lack of legal recognition and protection of environmental migrants is a gaping hole in international and domestic law. A refugee does not include a person fleeing from environmental destruction or displacement. These circumstances include directly human-caused events, such as industrial developments and disasters, or (climate change-exacerbated) natural events, such as typhoons. The definition of refugee only includes those fleeing from human-caused persecution. The 1951 Refugee Convention and 1967 protocol were designed only to respond to those who were fleeing from persecution of the Second World War and international and internal conflict that followed it.

This is out of touch with our lived reality. Most of those who are displaced around the world are environmentally displaced. According to a report by the Internal Displacement Monitoring Centre, the total number of new displacements in 2017 was approximately 31 million people. Approximately 19 million were environmentally displaced, with 12 million displaced due to violence and conflict.

Canada needs to do its part to push for binding international law to recognize environmental refugees and for obligations on States, including itself, to take in environmental refugees. Domestic legislation in Canada should be developed simultaneously.